It is likely that one of the most stressful parts of divorce for parents is not knowing how child custody and visitation or parenting time will be decided. If you do not understand the law and procedures that apply, it can be frightening to think about how your relationship with your children could change, whether you will be able to make important decisions for them, where they will live and how much time you spend together.
In Massachusetts, the best interests of the child is the guiding principal for judges making custody decisions. State law provides that the child’s “happiness and welfare” are paramount and the parents’ rights are equal unless a parent has been found to be currently unfit.
Often divorcing parents can negotiate an agreement on matters of child custody and visitation/parenting time, usually through their respective attorneys. Their agreement may then be submitted to the court for incorporation into the final divorce judgment. However, if the judge finds the settlement agreement is not in the child’s best interest, it can be rejected.
In addition to traditional negotiation, mediation and collaborative law are alternative dispute resolution methods that may be used to reach an agreement. However, if an agreement cannot be reached outside of court, then custody and visitation/parenting time will be decided by the judge in the divorce or custody proceeding.
Types of custody
Two kinds of custody must be decided: physical and legal. Physical custody determines where a child has his or her primary residence, often with one parent who is the sole physical custodian with the other exercising parenting time with the child. Alternatively, joint or shared physical custody means that the child splits residential time between the two homes. The shared time may or may not be equal.
Legal custody gives one parent solely, or both parents jointly, the right and responsibility to make major life decisions for the child, including those concerning education, health care and religion. Shared legal custody and decision-making powers are often awarded and preferable in most cases.
What to expect in court
If custody issues are before the court and a parent or parents want joint custody, they must submit proposed shared custody implementation plans, either alone or jointly. The judge may adopt a submitted plan, modify a submitted plan, or create a new one.
Sometimes, the judge may appoint a guardian ad litem, a person assigned to protect the interests of the child throughout the divorce process. The judge may ask for that person’s recommendations about custody and the judge may also order a formal investigation of the circumstances impacting the custody decision.
Of course, both parties can submit evidence to the court relevant to custody issues and a hearing will be held at which witnesses may testify and be cross-examined.
Although judges are required to look at family history, including possible abuse, and whether the child’s past or current living arrangements are in his or her best interest, state statutes vary in the specific factors a judge must consider when deciding custody issues. This gives the judge wide discretion to consider those factors he or she believes are relevant to determining what is in the child’s best interest.
This is a basic introduction to a complex area of state law. Anyone facing custody matters should seek advice from an experienced family lawyer.
The attorneys at the office of Linda Sternberg, Esquire, are family lawyers in Watertown. They represent parents in the Watertown metropolitan area and the surrounding counties in divorce and paternity matters, including child custody and visitation/parenting time. They use negotiation, mediation, collaboration and litigation to help their clients meet their goals.